Spoliation Claims are on the Rise
Monday, February 26, 2018
by: Timothy J. Nault

Section: Winter 2018

Author Bio

Tim Nault is a litigation attorney for Kirkpatrick & Startzel in Spokane. His practice focuses on defending businesses and municipalities against all types of claims. Prior to joining the firm, he clerked in state and federal trial courts including for the Honorable Rosanna Malouf Peterson of the United States District Court for the Eastern District of Washington.
Anecdotally and in the case law, spoliation claims appear to be on the rise in Washington. Initially, the case law on spoliation in Washington was noted for its scarcity. However, there have been several published decisions in the last ten to fifteen years which have helped fill out its contours.

In the seminal case of Henderson v. Tyrrell, 80 Wn. App. 592, 910 P.2d 522 (1996), the Washington Court of Appeals set forth the following test for evaluating spoliation claims. Initially, the alleged spoliation must in some way be connected to the party against whom the sanction is sought. If this connection can be established, the court will then apply a two-factor test evaluating: 1) the importance of the missing evidence; and 2) the culpability of the offending party.

Connecting the spoliation to the alleged offending party is a prerequisite to any spoliation claim. In Tyrell, the court evaluated several pieces of evidence that the defendant had allegedly failed to preserve. Tyrrell involved a single-vehicle accident where the plaintiff and the defendant each claimed that the other was the driver. The court determined that the failure to preserve two pieces of evidence recovered from the vehicle could not be attributed to the defendant. The defendant’s mother and brother had collected those pieces of evidence while he was in a coma following the accident, and there was no evidence that the defendant was aware of their existence. However, the court also analyzed the selling off of the vehicle itself. This action could be connected to the defendant because he owned the vehicle and made the decision to have it salvaged.

Later, in Homeworks v. Construction, Inc. v. Wells, 133 Wn. App. 892, 138 P.3d 654 (2006),
the court evaluated whether the replacement of allegedly defective siding on a homeowner’s residence could be connected to a general contractor in the general contractor’s subsequent claims for indemnity against its subcontractors. The general contractor’s insurer had paid out a claim to the homeowner for the allegedly defective siding and then, stepping into the shoes of the general contractor, sued the subcontractors who had installed the siding. Meanwhile, the homeowner had fixed the siding issues thus depriving the subcontractors of the ability to inspect the allegedly defective work. The subcontractors then claimed spoliation by the general contractor and its insurer. The Court of Appeals disagreed, reasoning that the general contractor’s insurer could not control the homeowner’s decision to fix the home. The court further noted that there was no evidence the insurer knew that the homeowner planned to fix the home at the specific time that they did.

If the alleged spoliation can be connected to the party against whom the sanction is sought, the court will then engage in the two-factor test set forth above. First, the court will examine the importance of the missing evidence. This is a highly case-specific inquiry. Courts are less likely to find spoliation where other evidence is available, such as photographs or reports which adequately depict or describe the evidence which was later destroyed.[1] This is true even where the evidence destroyed may have been preferable to the available alternatives. Courts will also consider whether the offending party gained some tactical advantage – such as where its testifying experts were able to examine the missing evidence while the other side’s experts were not.[2] Similarly, a party’s admission may render the missing evidence unimportant or of little additional relevance. Thus, where a medical doctor admitted that a certain scalpel blade and handle should not have been used, the fact that the defective handle had been discarded was of little import in a subsequent suit for malpractice.[3] Ultimately, it appears from the case law that the missing evidence must not only be important but perhaps even “indispensable.”[4]

In the second part of the spoliation test, the court will examine the culpability of the offending party. There are essentially two ways in which this prong can be satisfied. First, the party seeking sanctions can establish that the offending party acted in bad faith. This is done by showing that there is no innocent explanation for why the evidence was destroyed—thus leading to an inference that it was purposefully destroyed to prevent access. It appears from the case law that if bad faith can be established, no specific duty to preserve the evidence will be necessary.[5]

However, it is often difficult to establish bad faith and courts appear reluctant to make such a finding in all but the most compelling circumstances. Thus, the second method for establishing culpability is to show that the offending party was under a duty to preserve the evidence at issue.

As the Washington Court of Appeals recently noted in Cook v. Tarbet Logging, Inc., 190 Wn. App. 448, 360 P.3d 855 (2016), there is no general duty to preserve evidence in Washington. The mere fact that litigation is foreseeable will not, by itself, impose a duty to preserve evidence. Instead, the party seeking sanctions will need to establish the existence of a specific duty. When a specific duty arises is, unfortunately, not very clear. It does appear that an explicit request to retain specific evidence will impose a duty to preserve in most, if not all, circumstances.[6] It also appears that the actual initiation of a lawsuit will trigger a duty to preserve,[7] though presumably the defendant would need to be served with the suit before such a duty would arise. Beyond these specific events, initiation of a duty to preserve is less clear.

Courts have pointed to other duties which may trigger spoliation concerns, including the duty of amanaging partner to account for the partnership or the duty of a hospital to preserve medical records.[8] Courts have also suggested that company retention policies may create a duty to preserve evidence.[9] From the case law, it would appear that courts are willing to consider a duty to preserve in the context of spoliation law even where that duty is not specifically owed to the litigant. If the party was required to preserve the evidence for any reason then its destruction may give rise to a finding of spoliation, even if the evidence did not necessarily need to be preserved for the aggrieved party’s specific benefit.

In Tavai v. Walmart Stores, Inc., 176 Wn. App. 122, 307 P.3d 811 (2013), the court may have introduced another wrinkle to the duty analysis. In that case, the court suggested that the filing of an accident report might impose a duty to preserve “direct evidence” but not necessarily “indirect evidence.” Tavai concerned a slip and fall that occurred on the defendant’s premises. The court stated that if there had been actual video of the slip and fall itself, then the plaintiff’s act of filing an incident report with the store may have triggered the duty to preserve such evidence. However, in Tavai there was no such video of the fall itself and rather the issue was video from elsewhere around the store that may have provided circumstantial evidence of how the floor became wet and how long it had been in that state. The court declined to require a store to retain all video from throughout its store whenever someone slips and falls and files an accident report. From Tavai, it appears that the specific trigger event for a duty to preserve may impact how important the evidence needs to be for spoliation to be found, as in a sliding-scale fashion.
Where a party may have been under a duty to preserve evidence, courts have nonetheless been reluctant to find spoliation when the cause of the evidence’s destruction is more properly attributed to the passage of time.[10] In Tyrell, 80 Wn. App. 592, the court did not find spoliation even though the salvaging of the vehicle could be connected to the alleged spoliator and the alleged spoliator was under a duty to preserve the vehicle. The vehicle was destroyed almost two years after the accident occurred and a full year after the aggrieved party had asked that it be preserved. The court concluded that the aggrieved party had ample opportunity to inspect the vehicle and thus the alleged spoliator was not culpable for its destruction.
Even in situations where the party had only a small window to review the evidence, courts may find no remedy in spoliation law where the particular circumstances of the case would have dictated immediate review of evidence that was particularly susceptible to destruction. Thus, in Homeworks, 133 Wn. App. 892, the court declined to find spoliation where the aggrieved party had days or, at most, a few weeks to inspect allegedly defective siding before the homeowner had it repaired. While the court recognized that this was a very small window in which the house could have been inspected, it found that the defendants’ failure to take advantage of the opportunity nonetheless constituted a factor in determining that spoliation had not occurred.

Another issue in spoliation law is the proper sanction to apply where spoliation is actually found. A variety of sanctions have been discussed and imposed including: allowing the aggrieved party to argue an inference that the missing evidence would have been detrimental to the opposing party’s case in closing argument; a jury instruction which allows the jury to conclude that the missing evidence must have been unfavorable to the offending party; an instruction which requires the jury to draw such an inference; and the imposition of a rebuttable presumption which shifts the burden of proof to the offending party. Other sanctions have been imposed such as excluding expert witness testimony, allowing an inference to defeat summary judgment or even granting summary judgment in favor of the aggrieved party.

Many of the more severe sanctions mentioned above have not been upheld on appeal, although typically the issue is whether spoliation occurred at all instead of the propriety of the sanction imposed.[11] Courts have sometimes cautioned against imposing an adverse inference instruction or similar sanction because such an instruction may effectively impose too great of a burden for the offending party to overcome.[12] Ultimately it appears that the imposition of a spoliation sanction will be treated like any discovery sanction imposed by the court. The court will probably need to impose the least restrictive alternative to right whatever harm caused by the spoliation.

Practitioners likely need to be aware of spoliation analysis under federal law. Because spoliation is considered an evidentiary issue, the federal rule will be applied regardless of state law in the jurisdiction where the federal court sits.[13] Most federal jurisdictions do recognize a general duty to preserve evidence. That is, the duty to preserve arises where the party knows or reasonably should know that the evidence may be relevant to pending or future litigation.[14] Federal law may also require affirmative steps to preserve relevant evidence including the imposition of litigation holds in the face of document retention policies.[15]

One problem that can arise is when spoliation is committed by a third party. Litigation sanctions could not compensate or deter such conduct since the third party is not a litigant. Thus, some jurisdictions have recognized a cause of action against third-party spoliators.[16] Some jurisdictions have gone further and allowed a tort against a first-party spoliator—that is, a defendant in the underlying action who has allegedly destroyed evidence relevant to the plaintiff’s claims against that party.[17] Washington courts have not decided whether to recognize the tort of spoliation in any form.[18]

As the case law establishes, a Washington litigant would be wise to make a specific request for preservation of evidence as soon as possible so as to impose a duty to preserve. The litigant would then need to move expeditiously in obtaining or examining the evidence sought. Defending litigants may sometimes be at a disadvantage under current Washington law. In some cases, the defendant may be unaware or unable to predict that litigation is likely, and thus will not be in a position to preserve its right to access evidence. Because there is no duty to preserve evidence due to the mere foreseeability of future litigation, plaintiffs may not be required to prevent the inadvertent destruction of evidence until a lawsuit is actually filed. In such cases, the defendant likely cannot do more than assert that any destruction of evidence was done in bad faith and thus sanctionable whether or not a particular duty to preserve attached.
[1]   Homeworks Const., Inc. v. Wells, 133 Wn. App. 892, 899, 138 P.3d 654 (2006); Henderson v. Tyrrell, 80 Wn. App. 592, 609, 910 P.2d 522 (1996).
[2]  Henderson, 80 Wn. App. at 607.
[3]  Ripley v. Lanzer, 152 Wn. App. 296, 326, 215 P.3d 1020 (2009).
[4]  Homeworks, 133 Wn. App. at 899.
[5] See id. at 900.
[6] See Henderson, 80 Wn. App. at 610-11.
[7] Pier 67, Inc. v. King Cnty., 89 Wn. 2d 379, 385, 573 P.2d 2 (1977); Ripley, 152 Wn. App. at 326.
[8]  Henderson, 80 Wn. App. at 610.
[9]  Tavai v. Walmart Stores, Inc., 176 Wn. App. 122, 136, 307 P.3d 811 (2013).
[10] Homeworks, 133 Wn. App. at 902; Marshall v. Bally’s Pacwest, Inc., 94 Wn. App. 372, 382, 972 P.2d 475 (1999); Henderson, 80 Wn. App. at 611.
[11]  E.g., Homeworks, 133 Wn. App. 892.
[12] Cook v. Tarbert Logging, Inc., 190 Wn. App. 448, 466-67, 360 P.3d 855 (2015).
[13]  See Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993); Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009).
[14]  E.g., Knickerbocker v. Corinthian Colleges, 298 F.R.D. 670, 677 (W.D. Wash. 2014).
[15]  Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217-18 (S.D.N.Y. 2003).
[16]  E.g., Hills v. United Parcel Svc., Inc., 232 P.3d 1049, 1054-57 (Utah 2010) (discussing cases).
[17]  E.g., Rizzuto v. Davidson Ladders, Inc., 805 A.2d 1165 (Conn. 2006).
[18]  See Unigard Sec. Ins. Co. v. Lakewood Eng’r & Mfg. Corp., 982 F.2d 363, 371 (9th Cir. 1992).